delivered the opinion of the court.
The Northern Trust Company, trustee under Trust Agreement No. 7313 (hereinafter for convenience referred to as the Lauth Trust), having recovered a judgment for $5,501 against Harold S. Shrader, pursuant to which an execution was issued and returned wholly unsatisfied, filed its complaint in the nature of a creditor’s bill in the circuit court to reach principally the land held in Trust No. 24797 (hereinafter referred to as thе Land Trust), of which Chicago Title & Trust Company was trustee and Shrader was the sole beneficiary. Shortly thereafter Chicago Title & Trust Company, trustee under Trust Agreement No. 22146 (hereinafter referred to as the Morton Trust), the owner of a first mortgage note for $16,000 and the trust deed securing same, filed its complaint in the superior court to foreclose said trust deed against the property whiсh was the subject of the aforesaid land trust, being the same property which the Lauth Trust sought to reach by its complaint against Shrader. In such complaint in the nature of a creditor’s bill the Lauth Trust claimed a prior lien on the mortgaged land by reason of its judgment against Shrader. The proceeding instituted by the Lauth Trust in the circuit court was transferred to the superior court and there cоnsolidated with the foreclosure suit brought by the Morton Trust. A decree was entered finding that the Lauth Trust, the judgment creditor of Shrader, had no lien on the land which was the subject of the land trust and that the mortgage of the Morton Trust was a first lien thereon, and ordering the sale of the property for the satisfaction of the mortgage indebtedness. The Lauth Trust appeals from that portion of the decree which denied its claim of lien and the priority thereof.
The facts briefly stated are that the Lauth Trust obtained a judgment for $5,501 against Harold S. Shrader October 22, 1930; that Shrader was then living in the premises, which prior to the entry of said judgment had been conveyed by deed in trust from Nels Shoan and Hilma Shoan to the Chicago Title & Trust Company, as trustee under Trust Agreement No. 24797; that Shrader was the only person beneficially interested in that agreement and that he had various rights and powers thereunder, including the right to direct the trustee to mortgage the land described therein, as will hereinafter be fully set forth; that shortly after the Lauth Trust judgment against Shrader was rendered, the latter directed his trustee to make the mortgage, the foreclosure of which was ordered by the decreе entered in this cause; and that the mortgage note and trust deed securing same is owned -by the Morton Trust, of which Chicago Title & Trust Company is also trustee under its Trust Agreement No. 22146.
As heretofore stated the real estate in question was conveyed by deed in trust by Nels Shoan and Hilma Shoan to Chicago Title & Trust Company, on April 2, 1930, under Trust Agreement No. 24797. This land trust agreement recited that the trustee “is about to take title” to the real estate and “will hold it for the uses and purposes herein set forth. ’ ’ The other pertinent provisions of said trust agreement are:
“The following named persons shall be entitled to the earnings, avails and proceeds of said real estate according to the respective interests herein set forth, to-wit:
“Harold S. Shrader
“It Is Understood and Agreed between the рarties hereto, and by any person or persons who may become entitled to any interest under this trust, that the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said property, and to manage and control said property, as hereinafter provided, and the right to receive the proceeds from rеntals and from mortgages, sales or other disposition of said premises, and that such right in the avails of said property shall be deemed to be personal property, and may be assigned and transferred as such; that in case of the death of any beneficiary hereunder during the existence of this trust, his or her right and interest hereunder shall, except as herein otherwise specifically provided, pass to his or her executor or administrator, and not to his or her heirs at law; and that no beneficiary now has, and that no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds as aforesaid ....
“
“It is understood and agreed by the parties hereto and by any person who may hereafter become a party hereto, that said Chicago Title and Trust Company will deal with said real estate only when authorized to do so in writing and that (notwithstanding any change in the beneficiary or beneficiaries hereunder), it mil on the written direction of
“Harold S. Shrader
or such other person or persons as shall be frоm time to time named in writing by the beneficiary or beneficiaries, or on the written direction of such person or persons as may be beneficiary or beneficiaries at the time, make deeds for, or otherwise deal with the title to said real estate. . . .
“The beneficiary or beneficiaries hereunder, in his, her or their own right shall have the management of said property and control of the selling, renting and handling thereof, and shall collect and handle the rents, earnings, avails and proceeds thereof, and said trustee shall have no duty in respect to such management or control, or the collection, handling or application of such rents, earnings, avails or proceeds, or in respect to the payment of taxes or assessmеnts or in respect to insurance, litigation or otherwise, except on written direction as hereinabove provided, and after the payment to it of all money necessary to carry out said instructions. ... If any property remains in this trust twenty years from this date it shall be sold at public sale by the trustee on reasonable notice, and the proceeds of the sale shall be divided among* those who are entitled thereto under this trust agreement.”
The position of the Lauth Trust, the judgment creditor of Shrader, as stated in its brief is as follows: “The only question to be determined in this proceeding is entirely one of law. The lien of the appellant’s judgment is or is not superior to that of the trust deed. If this court determines that the Statute of Uses did not vest title in Harold S. Shrader to the premises in question then the decree should he affirmed, but should the court adjudge that appellant’s position is legally sound then this court should and, of course, will reverse the decree in that particular and remand the cause to the Superior Court of Cook County so that a decree may be entered therein finding and fixing the lien of the judgment as a first and superior lien and directing thе sale of the premises to satisfy the lien of the judgment in the first instance and the balance over to be applied on account of the mortgage indebtedness.”
In support of its position appellant insists that no duties or obligations are imposed upon. the trustee under Trust Agreement No. 24797, heretofore set forth, and that, therefore, said agreement constitutes a mеre nominal, naked, dry or passive trust, which was executed by the statute of uses (sec. 3, ch. 30, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 29.03]), immediately vesting* the legal title to the property in Shrader, the beneficiary of the trust and the judgment debtor; and that the legal title to the property being in Shrader when appellant’s judgment was entered against him and the rendition of said judgment having preceded the executiоn of the trust deed securing* the mortgage indebtedness, appellant’s lien on the property involved was prior and superior to the lien of the trust deed. Many authorities are cited to sustain the proposition that although words of express trust are used in the grant or devise of an estate in land to a trustee, where such trust is a passive one, imposing* no active duties upon thе trustee, the statute of uses operates to vest the legal title in the cestui que trust at once. It is unnecessary to discuss these authorities since they all passed upon factual situations disclosing naked or passive trusts and it is conceded that such trusts are executed by the statute of uses.
Appellee in its brief relies upon the following propositions
“1. The judgment debtor, Shradеr, had no interest in the mortgaged real estate as such. His interest was only in income, proceeds and avails of the trust, and was personal property. Consequently, the defendant’s judgment against Shrader was not a lien on the mortgaged real estate, and any notice arising from Shrader’s possession is immaterial.
“2. The Statute of Uses did not operate to vest Shrader with any title tо the mortgaged real estate, because (a) that statute does not affect personal property interests at all and (b) the trustee has under the terms of the land trust agreement No. 24797 the active duty to make conveyances during the term of the trust and the active duty at the end of twenty years to sell and convey all real estate remaining in the trust. ’ ’
Perhaps a clearer statement of appellant’s theory is that Shrader, immediately upon the delivery of the deed in trust on April 2, 1930, by the Shoans to Chicago Title & Trust Company, as trustee, by the operation of the statute of uses, became the legal owner of the real estate conveyed by said deed in trust, and consequently that appellant’s judgment against Shrader entered October 27,1930, attаched as a lien on such real estate at the time of the rendition of said judgment and was therefore superior to the lien of appellee’s mortgage made on November 1, 1930. The appellee concedes that, if Shrader had title to the property as claimed, then appellant’s judgment became a superior lien on the land, but insists that Shrader had no titlе to the real estate by virtue of the statute of uses or otherwise and that appellant’s judgment never became a lien on the land.
Was the beneficial interest of Shrader in the land trust personal property or was it an interest in the real estate as such? If the former, the statute of uses can have no application. It is expressly declared in the trust agreemеnt, heretofore set forth, that the interest of the beneficiary in the trust ‘ shall be deemed to be personal property” and not “any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds” thereof.
The rule has been long and well established in this State that the form of deed of trust and trust agreement before us creates a valid and subsisting* trust under which the interest of the beneficiary is personal property only and not real estate. It has been repeatedly held that an agreement creating an interest in the profits or proceeds of the sale of real estate creates no interest in or lien upon the land itself. (Morrill v. Colehour,
In Duncanson v. Lill,
“By the deed of trust the entire legal and equitable title tо the property was expressly vested in the trustee, and the interest of each and every beneficiary, and of all persons claiming under them, was declared to be personal property and to be in the earnings, avails and proceeds arising from the disposition of the property. The trust agreement likewise provided that the interest of any beneficiary should сonsist solely of the right to receive the proceeds from rentals or from sales of the property; that such right should be deemed to be personal property and might be assigned and transferred as such, and that in case of the death of any beneficiary during the existence of the trust, his right or interest should pass to his executor or administrator and not to his heirs-at-law. The rights of Duncanson and his wife as beneficiaries were declared to be personal property, and by the assignment George and William W. Lili succeeded to those rights. The assignees merely took the place of the assignors as beneficiaries under the trust agreement and the trust continued to exist. The acquisition of those rights by the assignees effected no change or transfer оf the title to the real estate. No conveyance was made by the Chicago Title and Trust Company, as trustee, pursuant to the assignment. The title remained in the trustee and it was not made a party to' the suit. Nor does the fact that the beneficiaries might terminate the trust by requiring the trustee to convey the property avail the appellants. The right might or might not be exercised. Suсh a conveyance would depend upon subsequent acts which might not be required or performed. ’ ’
In Duncanson v. Lill, supra, and Sweesy v. Hoy,
In Kerr v. Kotz,
Even though we assume that Shrader, the beneficiary, had the equitable title to the land, would the statute of uses execute the trust? The statute would not operate because the trustee hаs active duties to perform under the trust agreement sufficient to remove the trust from the class which the statute of uses executes. Although it is repeatedly asserted in appellant’s brief that the trust under consideration is one that is dry and passive because the trustee has no duties to perform, it is expressly covenanted in the trust agreement that the trustee will at the written directiоn of Shrader “make deeds for, or otherwise deal with the title to said real estate” and that “if any property remains in this trust twenty years from this date it shall be sold at public sale by the trustee on reasonable notice, and the proceeds of the sale shall be divided among those who are entitled thereto under this trust agreement.”
In Crow v. Crow,
“If the trust is created for some special purpose, as to convey the estate, it is a trust which the Statute of Uses will not execute. (Silverman v. Kristufek,
In Masters v. Mayes,
“By the deed from Alvord ... an express trust was created, and as, under the conditions of the trust, the fee could only be conveyed by Daniel D. Brengle, it was an active trust. ’ ’
In addition to its duty to “make deeds for, or otherwise deal with the title to said real estаte” when so directed by the trustee, the trust agreement imposed the positive, active duty upon the trustee to sell any property remaining in the trust at the end of its prescribed term without the necessity of the beneficiary’s direction to make such sale. Inasmuch as the trustee was expressly empowered and obligated under the terms of the trust instruments to perform the' active dutiеs shown and since Shrader’s interest in the trust was personal property only, we are impelled to hold that the statute of uses did not operate to vest Shrader with the title to the real estate involved in the land trust and that no lien attached thereto by reason of appellant’s judgment.
Other points have been urged and considered, but in the view we take of this cause further discussion is unnecessary.
For the reasons stated herein the judgment of the superior court is affirmed.
Judgment affirmed.
Scanlan, P. J., and Friend, J., concur.